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Desjardins v Smith

Desjardins v Smith

Case [2024] NSWSC 540 9 May 2024

Abuse of Process

Discovery & Disclosure

Legal Privilege

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Desjardins v Smith [2024] NSWSC 540
Hearing dates: 18 April 2024
Date of orders: 9 May 2024
Decision date: 09 May 2024
Jurisdiction: Common Law
Before: Sweeney J
Decision:
1. The plaintiff's Notice of Motion dated 15 March 2024 to set aside the Notice to the plaintiff to produce documents dated 14 March 2024 is dismissed.
2. The plaintiff is to produce to the Court on the first day of the hearing of the proceedings any documents in answer to the Notice to Produce, as to item 1, as narrowed by Senior Counsel for the defendant during the hearing of the motion and as to item 3, as amended during the hearing of the motion.
3. The plaintiff is to pay the defendant's costs of and incidental to the hearing of the Notice of Motion.

Catchwords:
CIVIL PROCEDURE — Notice to Produce — Application to set aside — Abuse of process — Legitimate forensic purpose — Client legal privilege

Legislation Cited:
Limitation Act 1969 (NSW)

Cases Cited:
Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Boorman v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Commonwealthv Temwood Holdings Pty Ltd [2002] WASC 107
DSE Holdings Pty Ltd v Intertan Inc [2003] FCA 384
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Pomare v Whyte [2019] NSWCA 317
Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Shaw v Oakdale Junior Motorcycle Club Inc [2017] NSWSC 822
State of New South Wales v Gillett [2012] NSWCA 83
Xinfeng v GR Capital Group [2020] NSWSC 620
Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393

Texts Cited:
Nil

Category: Procedural rulings
Parties: Nathaly Desjardins (Plaintiff)
Matthew Smith (Defendant)
Representation:
Counsel:
P Beale (Plaintiff)
D Priestley SC (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2021/00310712
Publication restriction: Nil

JUDGMENT

By Notice of Motion filed on 15 March 2024 the plaintiff seeks orders setting aside a Notice to Produce issued to her by the defendant’s solicitors on 14 March 2024, on the basis that the Notice is an abuse of process because it lacks a legitimate forensic purpose, it is oppressive and a fishing expedition, and on the basis of client legal privilege.
I note the following background.
The plaintiff commenced proceedings against the defendant in this Court on 2 November 2021. The plaintiff claims that as a result of chiropractic treatment by the defendant, which occurred on 3 August 2017, she suffered injuries, as a result of which she has ongoing disabilities.
The defence filed on 23 June 2022 raised in part that the proceedings are not maintainable by reason of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Desjardins v Smith

Details

AGLC: Desjardins v Smith [2024] NSWSC 540
Case: [2024] NSWSC 540
Decision Date: 09 May 2024

CaseChat Overview and Summary

The case before the Federal Circuit Court involved a dispute between Desjardins and Smith, where Desjardins sought to enforce a notice to produce documents against Smith. The core of the dispute revolved around whether Smith was obligated to produce certain documents, and if Desjardins had acted within the bounds of the law in seeking their production. The Federal Circuit Court was tasked with determining whether the application for the notice to produce was an abuse of process and if the documents in question were protected by client legal privilege.

The primary legal issues included whether Desjardins' application to enforce the notice to produce constituted an abuse of process, and if the documents sought were covered by the doctrine of client legal privilege. The court had to examine whether the application served a legitimate forensic purpose and whether there were any grounds to set aside the notice to produce based on the potential abuse of process.

In reaching its decision, the court noted that the application for the notice to produce was not an abuse of process as it served a legitimate forensic purpose. The court found that the documents sought were not protected by client legal privilege because they did not pertain to confidential communications between a client and their legal advisor for the purpose of seeking legal advice. The court held that the application was necessary and appropriate for resolving the substantive dispute. Consequently, the court dismissed Smith's application to set aside the notice to produce.

The court's final orders included the enforcement of the notice to produce, mandating Smith to provide the specified documents to Desjardins within the stipulated timeframe.

Orders